Mohammad Umar and Another vs Deputy Inspector General of Police,Moradabad Range and Others

Through this writ petition the petitioners have challenged further investigation in Case Crime No. 191 of 1997, under Sections 147,148,149, 307, 302 and 404, IPC arising out of an FIR, dated 25597 of Police Station Tanda, district Rampur. Consequently prayers have been made for protection against any coercive measure against the petitioners as also again warrant of attachment against them in the aforesaid case.

The case was initially investigated into by the Special Investigating Squad, Moradabad, under an order of the D.I.G. Police, Moradabad Range. The investigating agency filed charge, sheet No. 14, dated 18897 against certain persons only which Case No. 6571 of 1997 was initiated. There was also a chargesheet No. 14A dated 9997 against two more persons upon which Case No. 6798 of 1997 was started. These cases have been committed to the court of session. It was stated that a final report was submitted against the present two petitioners as they were found not involved in the concerned case. The assertions, however, indicate that the final report was not traceable on the record.

Subsequently, further investigation has been taken up by Sri A.P. Singh, Station Officer of Police Station Swar, which was, according to the petitioners wholly illegal and arbitrary. It was stated that Sri A.P. Singh had no authority under the law to investigate further the matter and he was not at all the investigating officer.

In the course of arguments the matter came up before Hon''ble R.K. Roy, J. and Hon''ble P.K. Jain, J. Their Lordships indicated in clear terms that they were about to dismiss the writ petition but at that stage the learned Counsel for the petitioners made a clear allegation that Sri A.P. Singh was not the Investigating Officer of the case in question. Accordingly, the State Counsel was directed to bring the original records connected with the investigation. These records were produced before us on 3398 and we were satisfied that the D.I.G. of the concerned range had empowered Sri A.P. Singh to investigate into the matter. Section 36 of the Cr. PC empowers any senior officers of police to exercise the powers of an officerincharge of a Police Station throughout his jurisdiction. An O.C. of a Police Station can transfer an investigation to another Police Officer and this power could not have been exercised by the D.I.G. Moreover at the instance of the D.I.G. only the S.I.S was entrusted with the investigation at an earlier stage. We must, therefore, hold that the investigation by Sri A.P. Singh may not be illegal when such investigation is permitted by the provisions of law.

It was contended by the learned Counsel that filing of a chargesheet is an executive action and there must be some finality attached to every executive action and it may not be open to review at all. It was contended that the makers of law had never desired that an order recorded in exercise of a power under the Cr. PC should be reviewed and only for that end in view no provisions of review was made in the Cr. PC The argument of the learned Counsel is certainly one which would have carried weight had there not been specific provisions for further investigation of a criminal case at end of the police. Section 173 (2), Cr. PC requires that after "completing" investigation the investigating officer is to make a report to a court and the report is to be appended with certain papers and it should be in certain form as indicated in the Act. Section 173 (8), Cr. PC however, provides that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate. This nonobstante clause clearly empowers the investigating agency to make further investigation despite the fact that a report under subsection (2) has been forwarded after "completion" of investigation. The only rider on this further investigation is that it should be made by the officerincharge of the Police Station. We have indicated in the earlier paragraphs of this order that Section 36, Cr. PC makes a senior police officer an officerincharge of a Police Station and under the orders of the D.I.G. investigation is being conducted by Sri A.P. Singh although he is at present connected with another Police Station. That the D.I.G. is empowered to entrust the investigation to a police officer presently posted beyond the concerned Police Station goes without saying as it was the D.I.G. only who had, at an earlier stage of the proceedings, entrusted the investigation to the Special Investigating Squad.

A further argument was advanced by Sri A.N. Srivastava that there was a clearcut and well demarcated sphere of activity in the field of crime detection and crime punishment and once cognizance is taken of an offence after submission of a report under Section 173 (2), Cr. PC the duty of the investigating officer came to an end. He has quoted a Supreme Court decision in his written argument as per A.I.R. 1980 Supreme Court at page 326. According to his own quotation it is found "on a congnizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173 (8), there commences the adjudicatory function of the judiciary". This is in our view rather supports what we had observed above that Section 173 (8), Cr. PC permits a further investigation despite submission of a report under Section 173 (2), Cr. PC and despite action having been taken on it. It is the known principle of law that the power of police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary. There is nothing before us to indicate that this power under Section 173 (8), Cr. PC is being exercised by the police officer mala fide.

We find no reason interfere with the further investigation nor are we inclined to record any interim order by giving any sort of protection to the petitioners, subject only to the observation that if there arises a question of arrest of the petitioners during this further investigation, certainly the principles laid down by the Supreme Court in the case Jogendra Kumar would be kept in mind.

With these observations, the writ petition stands dismissed.